In the unfortunate demise of an individual, there are various rights that accrue to different persons depending on the relationship between that person and the deceased. For example, wives and children of the deceased will be considered ‘automatic’ beneficiaries/heirs of the deceased and they will not need to prove their dependency on the deceased. This is contrasted to persons like parents of the deceased whose beneficiary status is not automatic, that is, they have to prove their dependency on the deceased immediately before his/her demise. Because of the ‘automatic’ status of the wife/wives and children of the deceased, it is usually assumed that their rights over the property of the deceased are superior to the rights of any other potential beneficiary.
However, this is not always the case. There are instances where the rights of other individuals, who are not necessarily wives or children of the deceased, may override the rights of the deceased’s heirs. These include persons such as: joint land owners and nominees, among others.
This article focuses on the rights of nominees and it explains why their rights over the estate of a deceased override those of heirs.
Nominees are third parties who are selected by the deceased during their lifetime to receive their benefits in various entities upon their death. These include benefits held in insurance policies, SACCOs, retirement benefit schemes, bank accounts, company shares, chamas, among other entities. Such entities usually require a member to nominate persons who would receive the benefits held by them upon their demise. Once the nomination is done by the deceased, the benefits held no longer form part of the ‘free property’ that is the subject of probate and administration proceedings, neither can they be bequeathed by the deceased under a will.
The nominated benefits will be subject to the laws that govern the various entities such as the Insurance Act, the Retirement Benefits Act, the Co-operative Society Act and the Sacco Societies Act. These laws recognize nominations and they provide that property which has been duly nominated should go to the nominee. For example, Section 36A of the Retirement Benefits Act provides that, “Upon the death of a member of a scheme, the benefit payable from the scheme shall not form part of the estate of the member for the purpose of administration and shall be paid out by the trustees in accordance with the scheme rules.” Its Regulations require the Scheme Rules to provide for the benefits of a deceased member to be paid to a nominated beneficiary.
This is a position that has been affirmed by the Kenyan courts on various occasions. An example is the case of In re Estate of Carolyne Achieng’ Wagah (Deceased) [2015] eKLR which was decided by Hon. Justice Musyoka. In this case, the administrator of the estate of the deceased sought to have the benefits of the deceased, such as terminal benefits upon death, pension, group life insurance and shares in a co-operative society be considered as part of the deceased’s estate and distributed among the beneficiaries according to the laws of succession. The deceased had made a will which only included assets that were subject to statutory nomination. The court dismissed the administrator’s application and held that funds which were subject to nomination did not form part of the deceased’s estate and could not pass under a will. The court also held that despite the fact that there was a will, all the deceased’s assets under the will had been nominated by the deceased and could only be given to the nominees and not to any other beneficiaries. Thus, the grant issued to the administrator was worthless since it sought to distribute property that the probate court had no jurisdiction to distribute in the first place.
In view of the foregoing, it is clear that the right of a nominee will override the right of an heir in instances where nomination is allowed by law. It is therefore important for one to understand the impact of nominating the funds they hold in various schemes to their preferred kin. When making a will, a person needs to be aware of the assets they have already nominated which will usually be funds held in the entities discussed above. The will should not include these funds otherwise it will be in vain because the funds will be paid to the nominee.
Since it is usually a requirement for one to make a nomination in the entities mentioned above, it is crucial for a person to keenly consider who their preferred nominees will be and the allocation of the share of the funds that they will give each of their nominees. Any person qualifies to be a nominee including one’s husband, wife, children, siblings, parents, friend, and so on. Consequently, one’s heirs can also be their nominees.
Thus, nomination is another way in which a person can bequeath their assets. In fact, one of the main advantages of nomination is that a nominee will directly receive the nominated funds upon the demise of the nominator and will not need to go through any court processes for the nomination to take effect. The other major advantage is that a nomination is not likely to be contested and will therefore pass as indicated by the nominator without objection from other parties. Therefore, it is advisable for one to take advantage of the option of nomination if available.
Article by Ivyn Makena
This article is intended for general knowledge only. It does not create an advocate-client relationship between any reader and Mboya Wangong’u & Waiyaki Advocates. For particular expert advice on any matter dealt with above, please contact us through
gmboya@lexgroupafrica.com or imakena@lexgroupafrica.com.
